Federal prosecutors commonly retry defendants after jurors deadlock and fail to reach a verdict, especially in high-profile cases such as that of D.C. Mayor Marion Barry, several legal experts said last night.
But strong currents from opposite directions will be tugging at U.S. Attorney Jay B. Stephens as he makes this difficult decision -- a legal and political one -- with the fate of the mayor and the welfare of the community at stake.
Stephens gave no hint last night of what he will do, saying only that prosecutors "will now assess the case, and determine how we should proceed." U.S. District Judge Thomas Penfield Jackson has set a status hearing Sept. 17.
History is studded with examples of retrials after hung juries. "It is the rule, rather than the exception, to retry cases," said former federal judge Raul Ramirez, of Sacramento, Calif. "Especially in a case of such notoriety."
But the outcomes in these retrials show no pattern.
Former Louisiana governor Edwin Edwards was retried and cleared after his first trial on federal racketeering charges ended in a hung jury. Former federal judge Harry Claiborne, of Nevada, was tried a second time and found guilty of federal tax evasion charges.
And the retrial of one defendant in the McMartin preschool case -- the nation's longest and most expensive criminal court case -- ended again with a deadlocked jury this month in Los Angeles.
Decisions to retry high-profile cases are always difficult, legal experts said, but in this case the conflicts may be excruciating.
"The prosecutors have two things tugging at them," said Baltimore defense lawyer Arnold M. Weiner. "On one side is the community pressure and the generalized feeling that the government has had its day in court -- in fact . . . weeks in court -- with respect to this particular defendant. . . . Against that will be the pressure that the government, after a long, vigorously mounted prosecution, hasn't gotten very much out of it."
Ramirez said those decisions are never supposed to be political, but inevitably are.
In the Barry case, prosecutors brought a 14-count indictment and obtained a conviction on "one low-level crime," which carries a small sentence, Ramirez said. "That does not satisfy all the person-power, all the money that has gone into this."
D.C. defense lawyer Greta Van Susteren and others agreed that a key to the determination will be the way the jury was split: whether it was strongly weighted to acquittal or conviction.
Florida defense lawyer Neal Sonnett, a former federal prosecutor, said there is always the possibility that some kind of deal could be worked out to avoid a retrial.
Former Pennsylvania representative Daniel J. Flood pleaded guilty to one misdemeanor charge and prosecutors dropped more serious charges after his first trial ended in a hung jury in 1979.